People v. Toliver CA1/1

Filed 12/13/22 P. v. Toliver CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A163874 v. ANDRE TOLIVER, (Alameda County Super. Ct. No. 76457C) Defendant and Appellant.

When he was a minor in the early 1980s, appellant Andre Toliver was convicted in adult court of second degree murder. He served and completed that sentence. In 2003, he was convicted of additional felonies, and his sentence for those crimes was increased as a result of the prior murder conviction. He is currently serving that sentence. Toliver petitioned to have his murder conviction vacated under subsequently enacted statutory authority. The trial court granted the petition and reduced the conviction to attempted robbery. In this appeal, Toliver argues that upon vacating his murder conviction, the court should have referred him to juvenile court to determine whether he should have been prosecuted there. The Attorney General concedes that the case should

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have been referred to juvenile court. We accept the concession and remand the matter for further proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND In 1982, when he was 16 years old, Toliver and two codefendants were charged with first degree murder and attempted robbery (Pen. Code, §§ 187, 211)1 with arming allegations on both counts (§ 12022, subd. (a)) in connection with the shooting death of cab driver. Toliver was charged in adult court.2 Following a preliminary hearing, Toliver in 1983 pleaded guilty to second degree murder, admitted to the arming allegation, and was committed to the Youth Authority for 15 years to life. He was released in the late 1980s because juvenile-court jurisdiction expired when he turned 25. In 2003, Toliver was convicted of six counts of second degree robbery (§§ 211, 212.5, subd. (c)), with enhancements for being personally armed with a firearm during five of the offenses (§ 12022.53, subd. (b)). His base terms for the robbery convictions were doubled because of the prior strike, and he received a five-year enhancement because the prior conviction was a serious felony, for a total sentence of 45 years and four months. He is currently serving the prison term for these convictions. Two subsequent changes to the law are implicated in this appeal. First, in 2016, voters enacted Proposition 57, “a measure that amended the